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Member (Jury) Selection in General Courts Martial

September 9, 2013

Jeffrey T. Frederick, Ph.D.

I was recently asked by the American Society of Trial Consultants (ASTC) to guest post on their
"Deliberations" blog and here is the result.

IN A WORLD . . .

where the convening authority selects the entire pool of potential panel members . . .

where the defense and prosecution each have potentially only one peremptory challenge, even in a death penalty case . . .

where challenges for cause are the only realistic method for removing potentially biased members . . .

No this is not the recent movie by the same name, IN A WORLD . . . , that opened in movie theaters last month. This is the world of general courts martial under the Uniform Code of Military Justice (UCMJ). . . . For the remainder of the post, click here.

 

See You on the Internet—Uh, I Mean, in Court: On Litigation-Based Websites

 November 5, 2012

Jeffrey T. Frederick, Ph.D.

A relatively new strategy by litigants is to take their cases to the public, not through press conferences but through establishing a voice on the Internet. True, this is not new. Martha Stewart and Michael Jackson had websites that supported their legal cases, and former Chicago Governor Rob Blagoivich had a Facebook page. Discussions of these activities can be found in Chapter 8, Jurors and the Internet, of my book.

Several interesting developments have occurred since the early days of litigant PR websites. First, getting the message out is not as cost-prohibitive as in the early years. It is relatively inexpensive to develop a basic website, and it costs no money to establish a Facebook, MySpace, Google+, or Twitter account. For example, lawyers for George Zimmerman (the person charged in the death of Trayvon Martin) have established websites for information and fundraising, along with a Twitter account for updates and responses to activities concerning the case. While a Facebook page was established by the defense, it was later suspended because of the vitriolic comments posted by supporters and opponents of Mr. Zimmerman. In an interesting twist on the concept of litigant websites, the defendant (Reeco Richardson) in a stolen vehicle case has a website in his subsequent civil lawsuit filed against Maryland state and local officials for the alleged ramming by a police cruiser of a stolen vehicle in which he was a passenger. Attorneys for the defendant asserted that their website was in response to postings of case information on the Montgomery County Police Department website.

Second, current litigant websites often contain much more detailed information than past litigant websites, including court documents and additional materials, potentially including video and audio files, e.g., police on-board camera recordings, agency hearings, and support rallies. The placing of information on the Internet may not stop as trial begins. For example, one defendant in a political corruption trial in 2010 posted tweets from the courtroom during trial commenting on what transpired, including the results of sidebar conferences and commentary on the conduct of participants and witnesses.

Finally, not only may litigants seek a public voice through the Internet, they can actually refine their outreach through the use of Google’s AdWords advertising system. In brief, through the use of Google’s AdWords system, advertisers can bid on placing their websites in the sponsored advertising sections of the Google search page results based on search requests using certain key words. In Bowoto v. Chevron, Chevron did just that. Chevron included the name of the lead plaintiff, Larry Bowoto, so that search results for that name would display the Chevron-sponsored website.

Litigants have argued that these avenues are legitimate free speech and do not prejudice the proceedings. In fact, the lawyer for George Zimmerman claims that such Internet activity had helped to quell tensions surrounding the case. However, prosecutors in the Zimmerman and Reeco cases have objected to the defendants various websites, claiming that such sites could taint potential jurors.

Reactions of courts have been varied. Judge Susan Illston in Bowoto forced Chevron to remove its sponsored links. Recently, Circuit Judge Debra Nelson in the Zimmerman case refused the prosecution's request to issue a gag order, citing the many remedies available to address issues of juror prejudice (i.e., change of venue, individual and sequestered questioning of jurors, and instructions to avoid outside sources of information).  The judge denied the prosecution’s motion to close the website for defendant Reeco Richardson.  It remained active during his trial, which resulted in the jury convicting the defendant of misdemeanor charges while being hung on the more serious car theft charges.

No matter how the courts eventually address this issue, litigants need to take several concrete steps. First, litigants should conduct searches of the Internet to determine what case-relevant information is present, including party websites and Twitter feeds. Second, Internet searches need to be periodic and ongoing.  The Internet sites of concern may not be static and may not be present at all times. A case in point is Bowoto, where the Chevron-sponsored website did not appear until after the jury pool was made aware of the lead plaintiff’s name just prior to jury selection. Third, the potential jurors' Internet usage and habits should be explored on voir dire and/or through supplemental juror questionnaires to establish which potential jurors may be at greater risk of conducting Internet searches. Fourth, potential jurors should be asked directly about whether they have encountered case-relevant information on the Internet, particularly if one of the litigants has an Internet presence or a litigant-relevant web presence. Finally, as noted in my book, and in a previous blog, jurors need to be given strong and detailed instructions concerning the use (or lack thereof) of the Internet during trial, including the consequences for doing so. For a further discussion of this final point, read the blog and associated article by Professor Thaddeus Hoffmeister.

What Is It About "Don't Twitter" You Do Not Understand?

December 14, 2011

Jeffrey T. Frederick, Ph.D.

A murder conviction and death penalty sentence were reversed and remanded in part because of tweets by a juror during trial. In a potentially game-changing decision, the Arkansas Supreme Court in Erickson Dimas-Martinez v. Arkansas, addressed an issue different from many other cases of Internet abuse by jurors. The issue facing the court was whether a juror's violation of the court's instruction by tweeting about the case denied the defendant a fair trial, not whether the content of the posts reflected bias or prejudice against the defendant. As such, the facts of tweeting and its timing during the trial proceedings are of interest.

Prior to opening statements, the trial court gave an instruction which included:

When you're back in the jury room, it's fine with me to use your cell phone if you need to call home or call business. Just remember, never discuss this case over your cell phone. And don't Twitter anybody about this case. That did happen down in Washington County and almost had a, a $15 million law verdict overthrown. So don't Twitter. Don't use your cell phone to talk to anybody about this case other than perhaps the length of the case or something like that.

Jurors were thus specifically instructed not to post comments on Twitter and were repeatedly instructed prior to each recess not to discuss the case with others. During lunch after the state's rebuttal case in the sentencing phase had been presented, Juror 2 tweeted, "Choices to be made. Hearts to be broken. We each define the great line." This tweet triggered a court hearing into the matter during the trial. The relevant exchanges are as follows:

THE COURT: Now, it has been brought to my attention that during—during the course of the trial that you have from time to time, uh, twittered, whatever that is. Have you?

JUROR [2]: Um, I twittered like day three in court or, you know, something about—not necessarily the case but just the time link about the court.

THE COURT: All right. But you haven't—

JUROR [2]: Not discussed any of the case.

THE COURT: Well, I want to ask you about a specific twitter and, uh, I want you to think about it and then tell me what it means.

JUROR [2]: Okay.

THE COURT: Okay. It's says: "Choices to be made. Hearts to be broken. We each define the great line." About 20 hours ago via text. Now what does that mean?

JUROR [2]: Well, I'm a little shocked. That's a little creepy. But, uh, it means, um—

THE COURT: Would you prefer to come up here to the bench?

. . . .

JUROR [2]: What it means was, um, not only like to pertain to this case but also to future stuff. Um, obviously, whatever we as a jury decide—you know, I'm not necessarily saying I know what's going to be decided, but we have to decide—make a huge decision. Either way, you know, if we do decide something like it's just gonna—a lot of people are either going to be mad about it watching the news because, you know, people have expressed to me you're on that court case, right? I can't talk about it. So I leave. So there's a ton of people watching this. And either way we decide, people are either going to be angry or people are going to be hurt either way. So what I was meaning by that was, you know, we have to define the great line of, you know, where we stand on a subject and, you know, what we have to choose—decide in the future. And also "Define the Great Line" was an Underoath album, and I thought I'd throw that in there along with my tweet.

THE COURT: Well, have you already made up your mind in this case what you're going to—how you're going to vote?

JUROR [2]: No, because I'm waiting for the other 11 to help me come to a conclusion.

THE COURT: All right.

JUROR [2]: But I'm trying to prepare myself just because you know, um, the death penalty or even this case is a little uncomfortable just because, um, I have not seen death in my life, like, firsthand. So the talk of death is a little uncomfortable just because it's an unknown—it's an unknown area for me.

THE COURT: All right. Mr. Stone, do you have any questions of [Juror 2]?

MR. STONE: No, I don't.

THE COURT: Ms. Streett?

MS. STREETT: No, sir.

THE COURT: All right, have—now, have you followed the Court's instructions about not discussing the particulars of this case with anybody?

JUROR [2]: Yes, sir.

THE COURT: Okay.

What was particularly troublesome was what the juror did next. Juror 2 continued his tweeting ways after the admonition. During deliberations, Juror 2 tweeted, "If its wisdom we seek . . . We should run to the strong tower. (April1, 2010, 1:27 p.m.)" and "Its over. (April 1, 2010, 3:45 p.m.)" This last tweet was posted 50 minutes before the jury announced its sentence (4:35 p.m.).

This case is of interest for several reasons. First, the Arkansas Supreme Court ruled that the juror's failure to follow the trial court's instructions was prejudicial and that the trial court's failure to dismiss the juror or order a new trial was an abuse of discretion. The court did not require a showing of prejudice in the content of the posts. Second, as noted by the court, a reporter was "following" the tweets of this juror, thus increasing the public nature of the juror's comments. (Yes, reporters and others are likely to follow "tweeting" jurors, if discovered.) Third, jurors often fail to view postings/tweets as "discussing" the case with others.  As Juror 2 commented, "people have expressed to me you're on that court case, right? I can't talk about it. So I leave," which indicates that he refused to discuss the case in face-to-face interactions, yet he felt that he was not discussing the case when he posted his tweets (which also is reflected in his answer to the judge's final question about not having discussed the case with others).  Finally, the juror was shocked and creeped out by the fact that the court had viewed his tweets (i.e., I'm a little shocked. That's a little creepy."). This reaction reinforces that fact that jurors are often unaware of just how public their activity is on the Internet—a point I make in my book.

This case also highlights the need to take affirmative steps to assess the potential for Internet abuse by jurors and to provide meaningful measures to minimize its impact on trials. First, parties need to determine potential jurors' footprints or presence on the Internet either through pretrial investigations and/or voir dire questioning. It is more likely that a Facebook posting, blogging, and/or tweeting juror BEFORE trial would continue to engage in this behavior during trial than it would be for other jurors to suddenly pick up this behavior.  Second, instructions against this prohibited behavior must be concrete, specific, and repeatedly delivered, including reference to the consequences for such violations. Constant references to "not discussing the case with others" simply are not sufficient. Finally, in addition to the need for more explicit and detailed instructions (and the instructions in this case did include a specific reference to Twitter), courts should consider having jurors sign a pledge that they will not engage in Internet abuse. In the recent criminal case of United States v. Viktor Bout, U.S. District Judge Shira Scheindlin had jurors sign the following pledge, which bans Internet research and communications (the description of which should be more concrete and specific in the future).Juror pledge not to use web Viktor Bout trial 2011

 

Did I Say That? Another Reason to Do Online Checks on Potential (and Trial) Jurors

October 13, 2011

Jeffrey T. Frederick, Ph.D.

Sure, in highly publicized cases, we all ask potential jurors whether they have expressed an opinion to others or, perhaps, written a letter to the editor regarding the case. And we tend to rely on the answers jurors give—although I have been involved in a death penalty trial where a potential juror, as editor of a local newspaper, had "forgotten" that he had written an editorial supporting capital punishment. Fortunately, the defense attorney had a copy of the editorial.

The Internet has vastly increased the opportunity for potential jurors to comment on cases before, during, and after trials. Jurors cannot only write letters to the editor, but they can voice their opinions on media websites and social networking sites (SNSs), e.g., Facebook and Twitter. And they do.

Ah, I Forgot!

A potential juror was recently held in contempt in an Oklahoma murder trial where Jerome Ersland, a pharmacist, had shot a robber five times after the robber lay wounded and motionless on the floor. While the potential juror had said that she had not expressed an opinion on the case, the defense discovered that she had made comments critical of the pharmacist on the local television's Facebook site six months before the trial. For example:

"First hell yeah he need to do sometime!!! The young fella was already died from the gun shot wound to the head, then he came back with a diffrent gun and shot him 5 more times. Come let's be 4real it didn't make no sense!"

The potential juror was removed from the jury pool. During a contempt hearing weeks later, the juror claimed she had forgotten she had made the six comments at issue and that she would have been fair to the pharmacist (who was convicted of first-degree murder). The judge refused to believe the juror, found her in contempt, and sentenced her to 100 hours of community service, which was to take place in the public defender's office.

I Am Ready for the Verdict!

OR, consider the juror who was ready to give her verdict halfway through the trial.  A Michigan juror posted on Facebook the following—"actually, excited for jury duty tomorrow. It's gonna be fun to tell the defendant they're GUILTY. :P." Unfortunately, this post occurred during a break between the end of the prosecution's case and the start of the defense. The judge was alerted to the post, and the juror was dismissed for misconduct, fined $250, and sentenced to write a five-page essay on the Sixth Amendment.

We Did the Right Thing!

Finally, consider the juror who defended the jury's guilty verdict.  A Virginia juror (under the username "Bedford") posted a defense of the jury's verdict on the website of the local paper, including the comment, "We were even given Jocelyn's journals," referring to the murdered victim's journals. Unfortunately, these journals had been excluded from evidence but had made it into the jury room, where jurors read aloud and passed around the journals. The judge sought and received the identity of the juror from the newspaper and subsequently declared a mistrial.

The chances are fairly small that a juror (potential or trial) will comment on a particular case in the media or on a SNS. However, as illustrated above, it does happen. Perhaps, the phrase made famous by former President Ronald Reagan (translating a quote from Vladimir Lenin) concerning relations between the U.S. and the former U.S.S.R., "Trust, but verify," has new meaning for jury trials in the age of the Internet. Further discussions of jury issues in the Internet age can be found in the latest edition of my book, Mastering Voir Dire and Jury Selection: Gain and Edge in Questioning and Selecting Your Jury, Third Edition.

"I Know You’re Out There . . . How Attorneys Can Conduct Group Voir Dire More Effectively"

Jeffrey Frederick, October 3, 2011

Most voir dire questioning of potential jurors is conducted in a group setting. This setting offers unique challenges that must be overcome to be effective in jury selection. For those who may have missed it. The Jury Expert published an article on the challenges of conducting voir dire in a group setting and how to make the most of it. This article can be read online and/or downloaded by using the following link: Ten Dynamite Tips to Improve Your Results From Group Voir Dire by Jeffrey T. Frederick, Ph.D.  (March 30, 2011)

Facebook and Jury Tampering: A New Threat Posed by Social Networking Sites (SNS) to Jury Integrity

August 8, 2011

Jeffrey T. Frederick, Jury Research Services

Recently, the judge in a criminal trial dismissed a jury prior to impaneling them after a friend of the defendant allegedly contacted one of the jurors through Facebook. The juror had reported this contact to the clerk of court. Review of the defendant's recorded telephone conversations from jail revealed the defendant, his girlfriend, and his mother discussing the names of three jurors, one name being that of the juror in question, with instructions from the defendant to contact them. The judge immediately dismissed the jury and revoked the bond of the defendant. An investigation into jury tampering is ongoing.

In March 2011, a former councilman in South Carolina was convicted of jury tampering when he e-mailed grand jurors. He had e-mailed the foreman of the grand jury requesting that the grand jury look into cases of corruption in government.

Much has been made of the impact of the Internet on jurors and the jury system. However, little attention has been paid to the threat posed by individuals contacting potential and trial jurors with the intent of influencing their verdict OR for that matter, jurors contacting the parties themselves, as was the case for a Manchester, England, where a juror received an eight-month jail sentence for contempt for both engaging in Internet research and having online conversations with an acquitted defendant through Facebook. Unfortunately for the juror, she was still deliberating on the fates of the remaining three codefendants at the time.

Of course, jury tampering is not a new phenomenon. While the situation described at the start of this blog may not be the first instance of attempted jury tampering via Facebook or other social networking media, it serves as a warning of a new potential threat to jury trials. According to a Pew research study, 79% of adult Americans are using the Internet, with 59% of these using social networking sites ("SNS"), including Facebook, MySpace, LinkedIn, and twitter.  These SNS serve as a direct channel to jurors serving in our courts today.

Many courts today are revising jury instructions to address Internet issues. However, these instructions, justifiably, tend to focus on jurors seeking information on the Internet. It now appears that additional attention should be directed to instructing jurors early on about (a) not accepting "friend" requests before or during the trial by unrecognized inquirers; (b) reporting to the court all contacts or attempted contacts received from unrecognized inquirers (and recognized inquirers if relevant to the trial); and (c) admonishing jurors against contacting the party(ies) or witness(es) before or during the trial. These instructions should be added to the Internet instructions that address issues of communications concerning the case and the seeking of case-related information or other related Internet searching activity.

As I point out in my book on voir dire and jury selection, Internet-related instructions should be treated separately from other media-related instructions and should include a discussion of the consequences for the juror and the trial that could arise from such activities.

Recently, the juror questionnaire used in the perjury trial of baseball slugger Barry Bonds included instructions concerning the Internet and a statement of the consequences for such violations with an affirmation that the juror understood the court's order. This practice should be refined and expanded.

Two remedies that I think are not warranted at this time are (a) having jurors accept a friend request from the court, and (b) using anonymous juries. The first option is more invasive and premature at this time.  The second option, using anonymous juries, was first fully implemented in 1977 and has received greater attention as of late. However, this remedy introduces the potentially negative effect of the influence of jurors rendering decisions under conditions of anonymity that are not warranted without significant concerns over juror safety, harassment, or intimidation. One study, and the only one found in a search on the topic, found that anonymous student-juries were more likely to convict and to use the most extreme sanction upon conviction than were nonanonymous juries.

Finally, the parties in the trial need to recognize the potential threat of jury tampering and be vigilant in monitoring Internet activity potentially related to their case.

Interview with the ABA re Jeff Frederick's New Jury Selection Book

The voir dire and jury selection process is one of the most challenging aspects of a jury trial, says Jeffrey T. Frederick, director of the Jury Research Services Division of the National Legal Research Group. “Having a list of questions to ask is only a starting point,” he explains in his new ABA-published book, Mastering Voir Dire and Jury Selection, Third Edition. “Conducting effective voir dire and jury selection requires developing strategies that secure the necessary information and adapt to the unique circumstances that lawyers face in their trial jurisdictions.” To help lawyers develop those strategies, Frederick recently met with YourABA, sharing advice from his 37 years of providing jury research services.

Go here to read the article.

INTERNET: "Excuse Me, Your Honor. I’m Not Finished Blogging Yet!"

February 1, 2011

Jeffrey T. Frederick, Jury Research Services

True story. I was being interviewed by Reuter’s reporter Brian Grow for a story he was doing on the Internet and jurors. As we were talking, he asked me if I wanted to look at something interesting that a potential juror was doing on the Internet. He directed me to a blog or as the juror distinguished, a “live journal.” Here are some samples of the comments the juror was making:

Jury Duty—part III

Oct. 20th, 2010 at 12:58 PM

So. . . My group went to trial where for the next 2 hours hey did void dir-ing. The prosecutor has on the tackiest suit I have ever seen. Out of 50 potential jurors, there are at least 5 gays, right? - he'f better find them and use his challenges. Plus, he was annoying in his part of the questioning. the defense attorney, on the other hand, just exudes friendly. I wanted to go to lunch with him. And he's cute.

They will pick the lucky 13 after lunch. I'm guessing they are going to find nothing to boot me for so I'll be one of the 13.

I'm kind of thumb neutral. On the one hand, it looks to be slice of life interesting. On the other hand, it looks to be 6 days long - tomorrow, and then Monday-Thursday of next week. Leaving aside the whole work thing - they will be annoyed but they will get over it - I'm not sure I can sit there all day with no computer, no front door tv network, etc.

Later that day:

REJECTED!!! Jury duty day 1

Oct. 20th, 2010 at 3:26 PM

Mr. Cheap suit rejected me!! Before we went back to the courtroom, they eliminated some. Then we sat through another hour of voir dir and then they started the real cherry picking. I was Mr. Cheap suit's first pick! I'm a little proud and I know it is only in my imagination that the defense attorney looked sad.

Now I'm back in the jury room with the other rejects. I'm pretty sure I was eliminated because my beauty would have been distracting. They did alude to the fact that there would be at least one stripper testifying. Mr. Cheap suit asked why someone might work as a stripper. He got lots of answers, like hard life and need the money. I said "maybe they like the work." Clearly not a popular theory.

The defense attorney asked some people what one law they would change. He didn't ask me and I could not have picked just one. It would be a toss up between legalizing pot or prostitution.

And still later:

And still more jury duty thrills.

Oct. 21st, 2010 at 12:02 PM

So. . . We sat until 10:15 when they gave us a 15 minute break. Slave drivers. Where do I sign up for the union???

Then it was back to a new courtroom. . . Different lawyers, different defendants, different judge. No cheap suits. Whew. This time I a, number 30 (last time I was 5). I'm thinking my chances of getting picked are way slimmer this time. Only 1-13 get to even sit in the good chairs. I did not give those chairs their appropriate appreciation yesterday - my bad. 14 -50 get the hard benches of second string.

This trial will also likely go through next week. The judge told us not to discuss it or Twitter about it. She made no mention of live journal but I'll stay vague.

The blogging of the potential juror was eventually brought to the attention of the Court by a local public defender (and after the interview, myself). She was removed from the jury pool.

What do we learn from this?

-We need to be aware of what potential jurors and trial jurors are posting on blogs/journals and on social networking websites.

-We need to encourage the Courts to pay greater attention to instructing jurors on the appropriate and inappropriate uses of the Internet during jury service.

-Some jurors with ignore the Court’s instruction (hence see point one).

One final comment: it is also a good idea to find out if potential jurors are heavy users of social networking Web sites such as Facebook, MySpace, or Twitter, or keep online journals or blogs. These are the most likely candidates for engaging in this behavior.

For a more detailed discussion of issues and opportunities concerning the Internet and jurors, see “Chapter Eight: Jurors and the Internet” in Mastering Voir Dire and Jury Selection: Gain and Edge in Questioning and Selecting Your Jury, Third Edition (2011) and Jeffrey T. Frederick, You, the Jury, and the Internet  (2010).

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